Citation Nr: 0700932
Decision Date: 01/11/07 Archive Date: 01/24/07
DOCKET NO. 96-46 073 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased disability rating for gouty
arthritis, currently evaluated as 20 percent disabling.
2. Entitlement to an increased disability rating for
diabetes, rated 20 percent disabling prior to January 4,
2001, and 60 percent disabling on and after January 4, 2001.
3. Entitlement to an increased disability rating for
arthritis of the right wrist and status post excisions of
ganglion cysts, currently evaluated as 10 percent disabling.
4. Entitlement to an increased disability rating for
hypertension, currently evaluated as 10 percent disabling.
5. Entitlement to an increased disability rating for
pancreatitis, currently evaluated as 10 percent disabling.
6. Entitlement to a compensable disability rating for
impotence.
7. Entitlement to an increased disability rating for an
appendectomy scar, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The veteran had active service from September 1967 to
September 1969 and from June 1981 to May 1989.
This appeal arises to the Board of Veterans' Appeals (Board)
from a January 2001 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia, that in pertinent part denied claims of entitlement
to increased ratings for diabetes mellitus, gout,
pancreatitis, hypertension, appendectomy scar, and right
wrist ganglion cyst and granted service connection for
erectile dysfunction (zero percent) with special monthly
compensation.
In October 2003, the Board remanded the case to the RO for
additional development. The case has been returned to the
Board for further appellate consideration.
FINDINGS OF FACT
1. Gouty arthritis is manifested by exacerbations occurring
at least every other month, but without weight loss and
anemia.
2. Diabetes mellitus is manifested by two daily insulin
injections, restricted diet, regulation of activities,
painful ketoacidosis episodes occurring less than three times
per year, visits to a health care provider twice per month,
and diabetic complications that would be compensable if rated
separately.
3. The service-connected right wrist disability is
manifested by hypertrophic changes of the carpal bones,
occasional flare-ups of swelling and pain, and painful
limitation of motion.
4. Predominant diastolic blood pressure of 110 or more or
predominant systolic blood pressure of 200 or more is not
shown.
5. The veteran's pancreatitis has caused no symptomatology
in recent years; at least 4-7 typical attacks of abdominal
pain per year due to pancreatitis are not shown.
6. Erectile dysfunction is currently manifested by loss of
erectile power without any evidence of penis deformity.
7. The appendectomy scar is tender and measures 14 by 2
centimeters.
8. The residuals of appendectomy include occasional episodes
of vomiting, nausea, or abdominal distention due to
peritoneal adhesions.
CONCLUSIONS OF LAW
1. The criteria for a 40 percent schedular rating for gouty
arthritis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321(b), 4.1,
4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5002,
5017 (2006).
2. The criteria for a 100 percent schedular rating for
diabetes mellitus are met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321(b),
4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.119 Diagnostic Code 7913
(2006).
3. The criteria for a schedular rating higher than 10
percent for arthritis of the right wrist are not met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10,
4.40, 4.45, 4.71, Plate I, 4.71a, Diagnostic Codes 5003,
5010, 5201, § 4.118, Diagnostic Codes 7801 through 7805
(effective prior to and on August 30, 2002).
4. The criteria for a schedular rating higher than 10
percent for hypertension are not met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic
Code 7101 (2006).
5. The criteria for a schedular rating higher than 10
percent for pancreatitis are not met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic
Code 7347 (2006).
6. The criteria for a compensable schedular rating for
impotency are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.1, 4.3, 4.7,
4.10, 4.115b, Diagnostic Code 7522 (2006).
7. The criteria for a schedular rating greater than 10
percent for appendectomy scar are not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.118,
Diagnostic Codes 7801 through 7805 (effective prior to August
30, 2002, and on August 30, 2002).
8. The criteria for a separate 10 percent schedular rating
for recurring small bowel adhesions due to appendectomy
incision are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321(b), 4.1,
4.3, 4.7, 4.10, 4.114, Diagnostic Code 7301 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA must tell each claimant what evidence is needed to
substantiate a claim, what evidence the claimant is
responsible for obtaining and what evidence VA will undertake
to obtain. 38 U.S.C.A. § 5103(a). VA has also undertaken to
tell claimants to submit relevant evidence in their
possession. 38 C.F.R. § 3.159(b) (2006). VA must tell a
claimant the types of medical and lay evidence that the
claimant could submit that is relevant to establishing
disability.
VA has notified the veteran of the information and evidence
needed to substantiate his claims. VA provided notice
letters in March 2003, April 2004, and in June 2005. These
letters informed the veteran of what evidence is needed to
substantiate the claims, what evidence he was responsible for
obtaining, and what evidence VA would obtain.
VA has met its duty to assist in obtaining any relevant
evidence available to substantiate the claims. VA
examination reports are associated with the claims files.
All identified evidence has been accounted for to the extent
possible. 38 U.S.C.A. § 5103A (b)-(d); see also 38 C.F.R.
§ 3.159(c). VA sent its first notice letter subsequent to
the initial adverse decision, which would normally require a
remand for compliance. Pelegrini v. Principi, 18 Vet. App.
112, 119-20 (2004). In this case, the Board did remand the
case in October 2003.
In Short Bear v. Nicholson, 19 Vet. App. 341, (2005), the
United States Court of Appeals for Veterans Claims (Court)
determined that only VA's failure to point out what evidence
is needed to substantiate the claim would be unfairly
prejudicial to the veteran. Because VA has pointed out what
evidence is needed, no unfair prejudice has resulted.
In Dingess v. Nicholson, 19 Vet. App. 473, the Court held
that the VA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Additionally,
this must include notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. In the present appeal,
because higher ratings are granted, the RO, at the time will
issue a rating decision that implements the Board decision
and assign effective dates for payment (if any) of
compensation for those ratings.
If the veteran is dissatisfied with either the effective date
that will be assigned by the RO, he is invited to submit a
notice of disagreement in accordance with appeal instructions
that will be issued with the rating decision. Thus, no
unfair prejudice to the veteran will result from the Board's
grant of increased ratings at this time.
Disability Ratings
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2006).
Diagnostic codes identify the various disabilities.
38 C.F.R. Part 4. The entire medical history is reviewed
when making disability evaluations. 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In
determining the current level of impairment, the disability
must be considered in the context of the whole recorded
history, including service medical records. 38 C.F.R. § 4.2.
Where there is a question as to which of two ratings shall be
applied, the higher rating will be assigned if the disability
picture more nearly approximates the criteria required for
that rating. 38 C.F.R. § 4.7.
Evaluation of a disability includes consideration of the
veteran's ability to engage in ordinary activities, including
employment, and the effect of symptoms on functional
abilities. 38 C.F.R. § 4.10.
Gouty Arthritis
Gouty Arthritis has been rated 20 disabling for the entire
appeal period under Diagnostic Code 5017-5002. Diagnostic
Code 5017 notes that gout is to be rated under Diagnostic
Code 5002.
Under Diagnostic Code 5002, a disability rating is assigned
based on the frequency of exacerbations per year. Where
constitutional manifestations associated with active joint
involvement are totally incapacitating, a 100 percent rating
is warranted. Less than the criteria for a 100 percent
rating but with weight loss and anemia, producing severe
impairment of health and severely incapacitating
exacerbations occurring 4 or more times per year or a lesser
number over prolonged periods warrants a 60 percent rating.
Symptom combinations that cause definite impairment of health
objectively supported by examination findings or
incapacitating exacerbations occurring three or more times
per year warrant a 40 percent rating. One or two
exacerbations per year warrant a 20 percent rating. 38 C.F.R.
§ 4.71a, Diagnostic Code 5002 (2006).
The veteran's gouty arthritis is manifested by exacerbations
occurring at least every other month, but without weight loss
and anemia that are necessary for a rating of 60 percent or
more. A recent laparotomy resulted in anemia; however, this
anemia is not relevant to the gout rating because gout did
not cause it. Comparing the manifestations of gouty
arthritis to the criteria of the rating schedule, the Board
finds that the criteria of a 40 percent schedular rating
under Diagnostic Code 5002 are more nearly approximated.
After considering all the evidence of record, including the
testimony, the Board finds that it favors the claim. A 40
percent schedular rating for gouty arthritis will therefore
be granted. 38 C.F.R. § 4.7.
Diabetes
Diabetes mellitus has been rated 20 percent disabling prior
to January 4, 2001, and 60 percent since then under
Diagnostic Code 7913. These criteria were revised effective
June 6, 1996. The first question is which version of the
rating schedule applies. A claim for an increased rating for
diabetes was denied in a January 1995 rating decision.
Although the veteran attempted to appeal that decision, his
substantive appeal was untimely received on August 31, 1998.
Thus, that decision became final.
In July 1999, the RO issued a rating decision that determined
that the August 1998 substantive appeal was untimely. The
veteran failed to appeal the July 1999 decision. Thus, that
decision became final also. Although the August 31, 1998,
substantive appeal was not timely with respect to perfecting
the prior appeal, it can be accepted as a claim for an
increase. The Board therefore accepts the August 31, 1998,
substantive appeal as a claim for an increased rating. This
means that the revised criteria for rating diabetes mellitus
should be used in this decision. The next question is which
disability rating should be assigned.
Under revised Diagnostic Code 7913, where diabetes mellitus
requires more than one daily insulin injection, restricted
diet, and regulation of activities (avoidance of strenuous
occupational and recreational activities) with episodes of
ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a
diabetic care provider, plus either progressive loss of
weight and strength, or complications that would be
compensable if separately evaluated, a 100 percent rating is
warranted.
Diabetes mellitus that requires insulin, restricted diet, and
regulation of activities with episodes of ketoacidosis or
hypoglycemic reactions requiring one or two hospitalizations
per year or twice a month visits to a diabetic care provider,
plus complications that would not be compensable if
separately evaluated, warrants a rating of 60 percent.
Diabetes mellitus requiring insulin, restricted diet, and
regulation of activities warrants a 40 percent rating.
Diabetes mellitus requiring insulin and restricted diet, or;
oral hypoglycemic agent and restricted diet warrants a 20
percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913
(2006).
Note (1) evaluate compensable complications of diabetes
mellitus separately unless they are used to support a 100
percent rating. Noncompensable complications are considered
part of the diabetic process under Diagnostic Code 7913.
Note (2) when diabetes mellitus has been conclusively
diagnosed, do not request a glucose tolerance test solely for
rating purposes.
The veteran's diabetes mellitus is manifested by a need for
insulin twice per day plus restricted diet and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year.
Also shown by medical evidence to be related to diabetes
mellitus are diabetic retinopathy, headaches, diabetic
gastroparesis, a diabetic ulcer on the right foot, and
diabetic peripheral neuropathy of the bilateral lower
extremities, which would be compensable if separately rated.
Comparing the manifestations with the rating criteria, it is
clear that some of the requirements for a 100 percent rating
are met. First, more than one daily injection is shown, as
noted in a February 1999 VA hospital report, which was for a
painful ketoacidosis episode. Second, that report also notes
that the veteran is on a "full diabetic diet." Third,
other reports reflect that the veteran must regulate his
activities and that he has diabetic complications that would
be compensable if rated separately. What is not shown are
three or more hospitalizations per year (for diabetes), or
weekly visits to a diabetic care provider. Clinical records
reflect that he is seen by his VA diabetic care provider
approximately twice per month.
Because some, but not all, of the 100 percent criteria are
shown, the Board must consider whether the manifestations
more nearly approximate the 100 percent criteria. After
considering all the evidence of record, including the
testimony, the Board finds that relative equipoise exists. A
100 percent schedular disability rating for diabetes will
therefore be granted.
Diabetic retinopathy, headaches, diabetic gastroparesis, a
diabetic ulcer on the right foot, and diabetic peripheral
neuropathy of the bilateral lower extremities need not be
considered for separate ratings, as they are used to support
the 100 percent rating. See 38 C.F.R. § 4.119, Diagnostic
Code 7913, Note 1.
Right Wrist
Arthritis of the right wrist and status post excisions of
ganglion cysts have been rated 10 percent disabling
throughout the appeal period under Diagnostic Code 5099-5010.
Diagnostic Code 5010 provides that arthritis due to trauma,
substantiated by X-ray findings, is rated as degenerative
arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010.
In turn, degenerative arthritis (hypertrophic or
osteoarthritis) when established by X-ray findings is rated
on limitation of motion under the appropriate diagnostic
codes for the specific joint or joints involved (Diagnostic
Code 5200 etc.). When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
for application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under Diagnostic Code 5003. Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.
In the absence of limitation of motion, a 20 percent
evaluation will be assigned where there is X-ray evidence of
involvement of two or more major joints or two or more minor
joint groups, with occasional incapacitating exacerbation. A
10 percent evaluation will be assigned where there is X-ray
evidence of involvement of two or more major joints or two or
more minor joint groups. Note (1) The 20 percent and 10
percent ratings based on X-rays will not be combined with
ratings based on limitation of motion. Note (2) the 20
percent and 10 percent ratings based on X-rays will not be
used in ratings listed under diagnostic codes 5013-5024. See
38 C.F.R. § 4.71a, Diagnostic Code 5003 (2006).
Limitation of motion in dorsiflexion of either wrist to less
than 15 degrees or where palmar flexion is limited in line
with the forearm warrants a 10 percent rating. 38 C.F.R.
§ 4.71 Plate I, § 4.71a, Diagnostic Code 5215 (2006). This
Diagnostic Code offers no rating higher than 10 percent.
The service-connected right wrist disability is manifested by
hypertrophic changes of the carpal bones, occasional flare-
ups of swelling and pain, and painful limitation of motion of
the wrist joint. Because the maximum rating offered for the
right wrist joint has already been assigned, there is no need
for further analysis. Although functional loss due to
weakness is also shown, no additional consideration is
necessary because the maximum rating for limitation of motion
has already been assigned. Johnston v. Brown, 10 Vet. App.
80 (1997) (where the maximum schedular rating is in effect
for loss of motion of a joint and the disability does not
meet the criteria for a higher evaluation under any other
applicable code (after all other potential codes have been
considered), further consideration of functional loss may not
be required.
The ganglion cyst excision scar on the right wrist is not
shown to be symptomatic nor does it meet the criteria for a
compensable rating based on area of skin coverage. See
38 C.F.R. § 4.118 Diagnostic Codes 7801 through 7805 (2006).
After considering all the evidence of record, including the
testimony, the Board finds that the evidence is against the
claim. (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49
(1991). A schedular rating higher than 10 percent for the
right wrist must therefore be denied.
Hypertension
The veteran's hypertension has been rated 10 percent
disabling under Diagnostic Code 7101 for the entire appeal
period.
Under Diagnostic Code 7101, a 10 percent rating is warranted
if hypertension is manifested by diastolic blood pressure
predominantly 100 or more, or if the systolic pressure is
predominantly 160 or more. A 10 percent rating is also
warranted if the condition requires continuous medication for
control, and there is a history of diastolic pressure
predominantly 100 or more. A 20 percent rating is warranted
if the diastolic pressure is predominantly 110 or more, or if
the systolic pressure is predominantly 200 or more. A 40
percent rating is warranted if the diastolic pressure is
predominantly 120 or more. A 60 percent rating (the highest
available rating) is warranted if the diastolic pressure is
predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic
Code 7101 (2006).
In this case, there is no evidence of predominant diastolic
blood pressure of 110 or more or a predominant systolic blood
pressure of 200 or more. After considering all the evidence
of record, including the testimony, the Board finds that the
preponderance of it is against the claim. Because the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application. See
38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim
for a schedular rating greater than 10 percent for
hypertension is therefore denied.
Pancreatitis
Pancreatitis has been rated 10 percent disabling under
Diagnostic Code 7347 for the entire appeal period. The
rating criteria for digestive disorders were revised
effective July 2, 2001; however, no substantive change was
made to Diagnostic Code 7347.
Frequently recurring disabling attacks of abdominal pain with
few pain-free intermissions and with steatorrhea,
malabsorption, diarrhea, and severe malnutrition warrants a
100 percent rating. Frequent attacks of abdominal pain, loss
of normal body weight, and other findings showing continuing
pancreatic insufficiency between acute attacks warrants a 60
percent rating. At least 4-7 typical attacks of abdominal
pain per year with good remission between attacks warrant a
30 percent rating. At least one recurring attack of typical
severe abdominal pain in the last year warrants a 10 percent
rating. Note 1: Abdominal pain must be confirmed as
resulting from pancreatitis by appropriate laboratory and
clinical studies. Note 2: Following total or partial
pancreatectomy, rate under above, symptoms, minimum rating 30
percent. 38 C.F.R. § 4.114, Diagnostic Code 7347 (2006),
In this case, there is no competent evidence that
pancreatitis has caused at least 4-7 typical attacks of
abdominal pain per year. The abdominal pains have been
related to other diseases rather than pancreatitis. During
hospitalization for abdominal pain, the veteran's pancreatic
enzyme levels were always within normal limits.
After considering all the evidence of record, including the
testimony, the Board finds that the preponderance of it is
against the claim. Because the preponderance of the evidence
is against the claim, the benefit of the doubt doctrine is
not for application. See 38 U.S.C.A. § 5107 (West 2002);
Gilbert, supra. The claim for a schedular rating greater
than 10 percent for pancreatitis is therefore denied.
Impotence
Impotence or erectile dysfunction has been rated
noncompensable (zero percent) for the entire appeal period
under Diagnostic Code 7599-7522. An April 1991 VA outpatient
treatment report notes that erectile dysfunction was felt to
be of psychological rather than organic in origin. Thus, it
is not secondary to diabetes. Under Diagnostic Code 7522,
deformity of the penis, with loss of erectile power, warrants
a 20 percent evaluation and consideration of special monthly
compensation. There is no schedular rating for loss of
erectile power alone. In other words, loss of erectile power
without penis deformity does not warrant a compensable rating
(aside from the special monthly compensation, which has
already been granted in this case). 38 C.F.R. § 4.115(b),
Diagnostic Code 7522 (2006).
The veteran's erectile dysfunction is manifested by loss of
erectile power without any evidence of penis deformity.
Comparing these manifestations with the criteria of the
rating schedule, the Board finds that the criteria for a
schedular 20 percent rating under Diagnostic Code7522 are not
more nearly approximated. This is because there is no
deformity of the penis. It does not appear that the criteria
for a compensable rating are more nearly approximated where
there is an erectile dysfunction alone. Special monthly
compensation may be assigned for erectile dysfunction alone
on the theory that it is analogous to the loss of a creative
organ. The RO has already assigned special monthly
compensation.
After considering all the evidence of record, the Board finds
that the preponderance of it is against the claim. Because
the preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application. See
38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. A
compensable schedular disability rating for impotence is
therefore denied.
Appendectomy Scar
The veteran's appendectomy scar has been rated 10 percent
under Diagnostic Code 7804 for the entire appeal period. The
rating schedule was revised effective August 30, 2002. The
RO provided the veteran with a copy of the revised rating
schedule in March 2003 and issued another SSOC in March 2006
that continued the 10 percent rating for the scar.
The claims file reflects that an in-service appendectomy
surgery resulted in abdominal adhesions caused by an
atypically large appendectomy incision. A December 1999 VA
examination report notes that the scar measured 14 by 2
centimeters and was tender, but with no tissue loss,
ulceration, edema, or disfigurement.
In a November 2005 VA examination report, a physician
explained that during the veteran's appendectomy, a central
midline incision was made, rather than the typical McBurney's
incision at the right lower quadrant. The physician noted a
history of multiple small bowel adhesions secondary to the
appendectomy. For instance, in November 2004, exploratory
laparotomy was necessary for lysis of these adhesions. In
January 2005, the veteran was again admitted to a VA medical
center with nausea, vomiting, and abdominal distention.
Laparotomy showed a "sigmoid valvulus" [an abnormal fold in
the sigmoid colon?] secondary to small bowel adhesions.
Sigmoid colectomy (excision of a portion of the colon),
colostomy bag, and small bowel resection were necessary.
Shortly thereafter, he was readmitted with postoperative
anemia secondary to gastrointestinal bleeding from the
surgery. He was readmitted several times during February and
March 2005 for further bowel obstructions. In late March
2005, another laparotomy was necessary for lysis of
adhesions. In August 2005, he underwent surgery for
"takedown" of a colostomy. No further problem was reported
after the August 2005 surgery; however, the November 2005 VA
examination report also reflects that the residuals of these
small bowel obstructions would restrict the veteran to
sedentary work in the future.
Under the prior provisions of Diagnostic Code 7804, a 10
percent rating is warranted for superficial scars that are
tender and painful on objective demonstration. See 38 C.F.R.
§ 4.118, Diagnostic Code 7804 (effective prior to August 30,
2002). Under the revised rating schedule, the provisions of
Diagnostic Code 7804 do not change substantively. A
superficial scar that is painful on examination warrants a 10
percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804
(effective August 30, 2002).
Under the prior provisions of Diagnostic Code 7805, scars,
other than those characterized as disfiguring, poorly
nourished, subject to repeated ulceration, or superficial
scars that are tender and painful, or burn scars, are to be
rated on limitation of function of the part affected under
Diagnostic Code 7805. See 38 C.F.R. § 4.118, Diagnostic
Codes 7803, 7804, 7805 (effective prior to August 30, 2002).
Under current Diagnostic Code 7805, scars, other than of
head, face, or neck, or deep scars, or unstable scars, or
superficial scars exceeding 144 square inches, are to be
rated on limitation of function of the part affected under
Code 7805. See 38 C.F.R. § 4.118, Diagnostic Code 7805
(2005).
The appendectomy scar is tender and measures 14 by 2
centimeters. Comparing these manifestations to the rating
criteria, it is clear that the tender scar is already rated
correctly at 10 percent under Diagnostic Code 7804. Under
either version of the rating schedule, there is no evidence
of scar-related disability that would warrant a rating higher
than 10 percent.
There is for consideration, however, a rating for the
persistent recurring abdominal adhesions that are clearly
related to the appendectomy. Esteban v. Brown, 6 Vet. App.
259, 261 (1994) (permitting separate evaluations for separate
problems arising from the same injury if they do not
constitute the same disability or same manifestation under 38
C.F.R. § 4.14). Because these adhesions produce symptoms
separate from the tender scar, they warrant a separate
disability rating. The rating schedule contains ratings for
peritoneal adhesions, which should be considered.
Abdominal adhesions may be rated by rated by analogy under
the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7301,
peritoneal adhesions. Severe adhesions warrant a 60 percent
rating. Moderately severe adhesions warrant a 30 percent
rating and are manifested by partial obstruction with delayed
motility of barium meal and less frequent and less prolonged
pain. If there is moderate pulling pain on attempting to
work or aggravated by movements of the body, or occasional
colic pain, nausea, constipation (perhaps alternating with
diarrhea) or abdominal distention, a10 percent rating is
warranted. If the injury has healed and there are no
residuals, a noncompensable evaluation is warranted.
38 C.F.R. § 4.114, Diagnostic Code 7311 (2006).
The residuals of appendectomy include occasional episodes of
vomiting, nausea, or abdominal distention due to peritoneal
adhesions. Comparing these manifestations with the rating
criteria, it appears that the 10 percent criteria of
Diagnostic Code 7301 are more nearly approximated. 38 C.F.R.
§ 4.7.
Anemia associated with postoperative bleeding appears to have
been short-lived. Thus, there is no basis for a compensable
rating for anemia.
After considering all the evidence of record, including the
testimony, the Board finds that the preponderance of it is
against the claim for a rating higher than 10 percent for the
appendectomy scar. Because the preponderance of the evidence
is against the claim, the benefit of the doubt doctrine is
not for application. 38 U.S.C.A. § 5107 (West 2002);
Gilbert, supra. However, the evidence favors a separate 10
percent rating for the recurring underlying small bowel
adhesions. A separate 10 percent schedular disability rating
under Diagnostic Code 7301 will therefore be granted.
Extraschedular Consideration
The provisions of 38 C.F.R. § 3.321(b) (2006) provide that
where the disability picture is so exceptional or unusual
that the normal provisions of the rating schedule would not
adequately compensate the veteran for his service-connected
disability, an extra-schedular evaluation will be assigned.
In this case, however, because a 100 percent schedular rating
has been granted for the entire appeal period, the matter
need not be referred for an extraschedular rating.
Colayong v. West 12 Vet. App. 524, 536 (1999) (If the matter
is not referred, the Board must provide adequate reasons and
bases for its decision to not so refer it).
ORDER
A 40 percent schedular rating for gouty arthritis is granted,
subject to the laws and regulations governing the payment of
monetary benefits.
A 100 percent schedular rating for diabetes mellitus is
granted, subject to the laws and regulations governing the
payment of monetary benefits.
An increased rating for arthritis of the right wrist and
status post excisions of ganglion cysts is denied.
An increased rating for hypertension is denied.
An increased rating for pancreatitis is denied.
A compensable rating for impotence is denied.
An increased rating for an appendectomy scar is denied.
A separate 10 percent rating for recurring small bowel
adhesions is granted, subject to the laws and regulations
governing the payment of monetary benefits.
______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs